Business

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Business and Human Rights:
How should lawyers respond to the new
lingua franca?
A4ID Training, New Delhi
16-17 September 2016
Surya Deva
Member, UN Working Group on Business and Human Rights

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Outline
1) UN Engagement with the Business and Human
Rights (BHR) Agenda
2) Guiding Principles on Business and Human
Rights: The New Lingua Franca?
3) Work of the UN Working Group on BHR
4) International Bar Association’s Practical Guide

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1. UN Engagement with the BHR Agenda
 The UN has been engaged with the impact of business
on human rights since the early 1970s
 It possible to divide this engagement in four broad
phases – each phase had a distinct ‘focal point’

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UN Engagement Continued ...
1970s-early1990s
Rights vs. Responsibilities (TNCs Code)
1998-2004
Voluntary vs. Binding (GC / Draft Norms)
2005-2011
Principled Pragmatism (UNGPs)
2014-
Cleavage between UNGPs and Treaty

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2. UNGPs: The New Lingua Franca?
 The UN Human Rights Council unanimously
endorsed the Guiding Principles on Business and
Human Rights (UNGPs) in June 2011
 The first set of authoritative global standards
 Developed after extensive consultations with all
stakeholders during 2005-2011

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UNGPs Continued ...
 The UNGPs apply to all business enterprises and
covers all human rights
 Organised around Three Pillars:
1) State duty to protect human rights
2) Business responsibility to respect human rights
3) Access to effective remedy

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UNGPs Continued ...
 State duty to protect, e.g.,:
o Taking steps to prevent, investigate, punish and redress
abuses by corporations [Principle 1]
o Setting out expectations from companies, including by
extraterritorial laws [Principle 2]
o Creating an environment conducive to business respect
for human rights [Principle 3]
o Special care in conflict-affected areas [Principle 7]
o Ensuring policy coherence at domestic and international
levels [Principles 8-10]

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UNGPs Continued ...
 Business responsibility to respect, e.g.,:
o Avoid infringing on the human rights & address adverse
human rights impacts [Principle 11]
o Declaring a policy commitment to respect human rights;
conduct due diligence; and put in place processes to
remedy adverse human rights impacts [Principles 15-22]
Human Rights Due diligence (HRDD) is the
key process that companies should adopt to
comply with their responsibility to respect
human rights

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UNGPs Continued ...
 Various redress mechanisms as part of the access to
remedy pillar, e.g.,:
oState-based judicial mechanisms [Principle 26]
oState-based non-judicial mechanisms [Principle 27]
oNon-state-based grievance mechanisms [Principles
28-30]
Effectiveness criteria for
non-judicial mechanisms
(Principle 31)

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UNGPs Continued ...
Uptake of UNGPs
 Overall, an impressive uptake by businesses + states
 Endorsed by regional bodies: EU, ASEAN, AU, OAS
 Integrated into the 2011 version of the OECD
Guidelines for Multinational Enterprises

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UNGPs Continued ...
 Incorporated into various regulatory frameworks:
 ISO 26000
 UN Global Compact
 Equator Principles
 Global Reporting Initiative (GRI)
 IFC Performance Standards

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UNGPs Continued ...
 Influencing laws and policies:
 UK Modern Slavery Act (2015)
 California Transparency in Supply Chains Act
(2010)
 French Due diligence Bill (pending)
 EU Non-financial Reporting Directive (2014)
 Chinese Due Diligence Guidelines for Responsible
Mineral Supply Chains (2015)

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UNGPs Continued ...
 Uptake by diverse stakeholders:
o Institutional investors
o FIFA
o Business associations – e.g., ICMM
o CSOs
o International Bar Association

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3. Work of the UN Working Group on BHR
• The UNWG on BHR was established in 2011
• It comprises five independent experts representing
five different regions

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UNWG work Continued ...
• The mandate of the UNWG includes:
Promoting dissemination and implementation of the
UNGPs
Identify, exchange and promote good practices
regarding UNGPs implementation
Provide support to promote capacity-building
Explore options and make recommendations for
enhancing access to effective remedies

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UNWG work Continued ...
Conduct country visits
Integrate a gender perspective and give special
attention to persons living in vulnerable situations
Develop a regular dialogue with governments and
all relevant actors
Guide the work of the Annual Forum on Business
and Human Right

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UNWG work Continued ...
• The UNWG also receives information about alleged
human rights abuses and sends letters to the concerned
states and/or business enterprises
• Furthermore, it can issue public statements and make
urgent appeals in appropriate cases
Joins other UN
special procedures too

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UNWG work Continued ...
• In the last 5 years, the UNWG has tried to set/clarify
standards and provide guidance to states as well as
business enterprises:
 Responsible agricultural supply chains (Oct 2017)
 State-owned enterprises should lead by example
(June 2016)
 Business-related impact on indigenous peoples (Oct
2013)
 Guidance to states about National Actions Plans on
BHR (2014; 2016)

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UNWG work Continued ...
• There are several opportunities to engage the UNWG
on BHR:
Input during
UNWG sessions
Meetings during
Country Visits
Triggering
Communications
Panels @ Annual
BHR Forum
Feedback
regarding UNWG
reports / surveys

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4. IBA Practical Guide on BHR
 How do the UNGPs affect the way in which lawyers
have been advising companies?

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IBA Practical Guide Continued ...
 Four starting points:
Link
• No business decision without an impact on HRs
Law
• Focusing merely on hard law will be inadequate
Scope
• Only national regulations will not suffice
Firm
• Even law firms have HRs responsibilities

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IBA Practical Guide Continued ...
IBA Practical Guide on BHR
 In May 2016, the IBA released a Practical Guide to
assist business lawyers in navigating through the
intersection of business with HRs
 The Guide specifically focuses on the implications of
the UNGPs, which in itself are not binding but do
contain binding rules

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IBA Practical Guide Continued ...
 The UNGPs are relevant to whatever is the territory of
your advice to corporations:
 dispute resolution (via courts or ADR)
 mergers and acquisitions
 corporate governance
 reporting and disclosure
 labour and employment
 land acquisition
 taxation
 intellectual property rights

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IBA Practical Guide Continued ...
 Lawyers should advise corporations to pre-empt
human rights risks – not merely risks to them – by
conducting HRDD
 As the nature and extent of HRDD is likely to vary as
per size, sector and operating context, lawyers would
have a key role to play in exercising their professional
judgment

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IBA Practical Guide Continued ...
 Lawyers should also keep in mind that corporations
may create human rights impacts in different ways
 They may cause, contribute or be linked to such
risks

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IBA Practical Guide Continued ...
 The response of the business to adverse HRs impact
varies as per the nature of their involvement with such
harm:
• Cease the action
• Remedy the harm
Caused
• Cease the action
• Use/build leverage
• Contribute to remediation
Contributed to
• Use/build leverage to
mitigate the risk
Linked to

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IBA Practical Guide Continued ...
 Post-UNGPs, if you are advising a corporation, say,
about dispute resolution, you should consider:
o being proactive in meaningful engagement with
affected stakeholders
o covering up may not last for long
o likelihood of complaints before non-judicial fora
(e.g., NCPs under the OECD Guidelines)
o possibility of establishing an operational-level
grievance mechanism

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IBA Practical Guide Continued ...
 But the UNGPs do not override lawyers’ professional
and ethical responsibilities to provide an independent
advice and act in the best interests of their clients
 Business enterprises continue to have a right to defend
themselves against allegations of human rights
violations
Tension though
possible in certain
cases!